Podcast
Questions and Answers
What is the minimum number of witnesses required for a will to be valid?
What is the minimum number of witnesses required for a will to be valid?
- One
- Four
- Two (correct)
- Three
What is the consequence of uncertainty as to the subject matter of the will?
What is the consequence of uncertainty as to the subject matter of the will?
- The gift is void
- The gift is ambiguous
- The gift is valid
- The gift fails (correct)
In the case of Peck v Holsey (1726), what was the reason for the gift to fail?
In the case of Peck v Holsey (1726), what was the reason for the gift to fail?
- Uncertainty as to the subject matter of the will (correct)
- Uncertainty as to the object of the will
- Lack of testamentary capacity
- Suspicious circumstances
What was the issue in the case of Asten v Asten (3 Ch 261)?
What was the issue in the case of Asten v Asten (3 Ch 261)?
What is the consequence of uncertainty as to the object of the will?
What is the consequence of uncertainty as to the object of the will?
In the case of Re Stephenson (1 Ch 75), what was the issue?
In the case of Re Stephenson (1 Ch 75), what was the issue?
What is the burden of proof in challenging a will?
What is the burden of proof in challenging a will?
What is the requirement for the execution of a will?
What is the requirement for the execution of a will?
What is the main reason for a will being held invalid?
What is the main reason for a will being held invalid?
In what circumstance would the court be suspicious of a will?
In what circumstance would the court be suspicious of a will?
What is the burden of proof in challenging a will?
What is the burden of proof in challenging a will?
What does testamentary capacity depend on?
What does testamentary capacity depend on?
What is the rule in Barry v Butlin?
What is the rule in Barry v Butlin?
What is the result of a testator lacking mental capacity?
What is the result of a testator lacking mental capacity?
What does the court consider when determining the validity of a will?
What does the court consider when determining the validity of a will?
In what case was the rule in Barry v Butlin followed?
In what case was the rule in Barry v Butlin followed?
What is the initial burden of proof in the execution of a will?
What is the initial burden of proof in the execution of a will?
What happens if the burden of proof is not discharged by the proponent and the challenger?
What happens if the burden of proof is not discharged by the proponent and the challenger?
What is required to challenge a will on the grounds of suspicious circumstances?
What is required to challenge a will on the grounds of suspicious circumstances?
What is the effect of a will being rational on its face?
What is the effect of a will being rational on its face?
What is the burden of proof for the challenger if the will is rational on its face?
What is the burden of proof for the challenger if the will is rational on its face?
What is the effect of the challenger proving the testator lacked capacity?
What is the effect of the challenger proving the testator lacked capacity?
In what case was a will held invalid despite being rational on its face?
In what case was a will held invalid despite being rational on its face?
What is the role of the proponent of the will in cases of challenging a will?
What is the role of the proponent of the will in cases of challenging a will?
Study Notes
Testamentary Capacity
- A testator's mental capacity can be questioned if they are extremely ill or forgetful, especially if they fail to make provision for their relatives.
- If a testator lacks mental capacity, their will can be held invalid.
- Physical health does not determine testamentary capacity (Lee Ing Chin & Ors v Gan Yook Chin & Anor).
Burden of Proof
- The party propounding the will must prove that the instrument is the last will of a free and capable testator.
- If circumstances excite the court's suspicion, the proponent must remove such suspicions and prove affirmatively that the testator knew and approved the contents of the document.
- The onus is first on the proponent of the will, and once proven, the onus shifts to the opponent of the will (Barry v Butlin, Tyrrell v Painton).
- If the propounder fails to prove the will, the challenger must prove fraud or undue influence (Tyrrell v Painton).
- The court will consider the circumstances surrounding the will, including the attorney's involvement and the exclusion of family members (Barry v Butlin, Estate of Hew Wai Kwong).
Presumptions
- If the will is rational on its face, there is a presumption that the testator was sane at the time the will was made.
- The challenger must prove that the testator lacked adequate mental capacity generally or at the particular time the will was made.
- If the challenger proves incapacity, the burden shifts back to the proponent to establish that the testator had adequate capacity at the time the will was made (Harwood v Baker).
- If there are multiple attesting witnesses, the will would be valid if at least two of them are not beneficiaries to the will.
Uncertainty in the Will
- If the subject matter of the will is uncertain or ambiguous, the gift fails (Peck v Holsey, Asten v Asten).
- If there is uncertainty as to the object of the will, the recipient, the gift also fails (Re Stephenson).
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Description
A 1949 will case where the testator's mental capacity is questioned due to illness and lack of provision for his son. Learn about the legal implications and the court's decision.
